[Senate Executive Report 110-9]
[From the U.S. Government Printing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 1st Session                                                      110-9

======================================================================



 
                    CONVENTION ON THE LAW OF THE SEA

                                _______
                                

                December 19, 2007.--Ordered to be printed

                                _______
                                

          Mr. Biden, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

                             together with

                             MINORITY VIEWS

                   [To accompany Treaty Doc. 103-39]

    The Committee on Foreign Relations, to which was referred 
the United Nations Convention on the Law of the Sea, with 
Annexes, done at Montego Bay, December 10, 1982 (the 
``Convention''), and the Agreement Relating to the 
Implementation of Part XI on the United Nations Convention on 
the Law of the Sea, with Annex, adopted at New York on July 28, 
1994 and signed by the United States on July 29, 1994 (the 
``1994 Agreement'') (Treaty Doc. 103-39), having considered the 
same, reports favorably thereon with declarations, 
understandings, and conditions as indicated in the resolution 
of advice and consent, and recommends that the Senate give its 
advice and consent to accession to the Convention and 
ratification of the 1994 Agreement, as set forth in this report 
and the accompanying resolution of advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Major Provisions.................................................3
 IV. Entry Into Force and Denunciation................................8
  V. Implementing Legislation.........................................8
 VI. Committee Action.................................................8
VII. Committee Recommendation and Comments............................9
VIII.Text of Resolution of Advice and Consent to Ratification........19

 IX. Minority Views..................................................24
  X. Annex--Letters From Other Senate Committees.....................29

                               I. PURPOSE

    The Convention, together with the related 1994 Agreement, 
establishes a comprehensive set of rules governing the uses of 
the world's oceans, including the airspace above and the seabed 
and subsoil below. It divides the seas into maritime zones and 
establishes rights, obligations and jurisdiction over each zone 
that carefully balance the interests of States in controlling 
activities and resources off their own coasts and the interests 
of all States in protecting the freedom to use the oceans 
without undue interference. Among the central issues addressed 
by the Convention and 1994 Agreement are rights and obligations 
related to navigation and overflight of the oceans, 
exploitation and conservation of ocean-based resources, 
protection of the marine environment, and marine scientific 
research.

                             II. BACKGROUND

    President Richard M. Nixon, in a statement on oceans policy 
issued on May 23, 1970, first proposed the concept of a treaty 
that would set forth a legal framework for the oceans. 
Negotiations on the Law of the Sea Convention were launched a 
little over three years later and occupied a nine-year span 
between December 1973 and December 1982, when the final text 
was adopted. The impetus for the Convention grew out of two 
primary international concerns. First, several coastal and 
naval States, including the United States, were concerned that 
the rapidly proliferating number of expansive claims regarding 
ocean space would restrict fundamental freedom of navigation 
rights. Second, a number of developing countries wanted to 
guarantee access to resources in the area beyond national 
jurisdiction, while national and multinational corporations 
wanted an international Convention that would provide legal 
certainty to companies interested in deep seabed mining.
    The United States and other industrialized countries 
supported the treaty that resulted in 1982 with the exception 
of the provisions that related to mining of resources from the 
seabed, ocean floor and subsoil thereof, beyond the limits of 
national jurisdiction. In 1983, President Ronald Reagan issued 
a statement on Oceans Policy explaining that because of 
enumerated problems with the deep seabed mining provisions the 
United States would not sign the Convention, but that otherwise 
the treaty ``contains provisions with respect to traditional 
uses of the oceans which generally confirm existing maritime 
law and practice and fairly balance the interests of all 
states.'' Consequently, President Reagan announced that the 
United States would act in accordance with the balance of 
interests struck in the Convention relating to the 
``traditional uses of the oceans--such as navigation and 
overflight.''
    Other allies, such as the United Kingdom, shared the 
concerns expressed by the United States regarding the deep 
seabed mining provisions in Part XI of the Convention. As a 
result, the Administration of President George H.W. Bush laid 
the groundwork for the launch of negotiations on a new 
agreement that would modify the deep seabed mining regime in 
the Convention to address the various concerns raised. The 
result was the 1994 Agreement, which dealt with each of the 
problems identified by the United States. Consequently, the 
United States signed the 1994 Agreement on July 29, 1994. 
President Bill Clinton submitted both agreements to the Senate 
in October of that year.
    In the 108th Congress, the committee held two hearings on 
the Convention in October 2003, in response to the 
Administration's designation of the Convention as one of five 
``urgent'' treaties on its treaty priority list. In February 
2004, the committee unanimously approved the Convention and the 
1994 Agreement (Exec. Rpt. 108-10). No action was taken by the 
Senate, and under the operation of the Senate rules, the 
Convention and the 1994 Agreement were returned to the 
committee at the end of the 108th Congress.
    On May 19, 2007, President George W. Bush urged the Senate 
to approve the Convention during this session of Congress, 
stating as follows:


        Joining [the Convention] will serve the national 
        security interests of the United States, including the 
        maritime mobility of our armed forces worldwide. It 
        will secure U.S. sovereign rights over extensive marine 
        areas, including the valuable natural resources they 
        contain. Accession [to the Convention] will promote 
        U.S. interests in the environmental health of the 
        oceans. And it will give the United States a seat at 
        the table when the rights that are vital to our 
        interests are debated and interpreted.


    As of October 31, 2007, there are 155 Parties to the 
Convention, and 131 Parties to the Agreement Relating to the 
Implementation of Part XI. Every member country of NATO, except 
Turkey and the United States, is a Party to the Convention and 
the 1994 Agreement. Most NATO states did not join until the 
conclusion of the 1994 Agreement.

                         III. MAJOR PROVISIONS

    A detailed article-by-article analysis of the Convention 
and the 1994 Agreement may be found in the September 23, 1994 
Letter of Submittal from the Secretary of State to the 
President, which is reprinted in full in Treaty Document No. 
103-39. The Bush Administration has confirmed its view that, 
generally, the Letter of Submittal appropriately analyzes and 
interprets the Convention and the 1994 Agreement, and has 
furthermore agreed that the declarations and understandings in 
the resolution of advice and consent agreed to by the committee 
further refine the analysis and interpretations contained in 
the Letter of Submittal. The Executive Branch's views on 
particular provisions of the Convention and the 1994 Agreement 
are also found in testimony and responses to questions for the 
record at various hearings held on the Convention and the 1994 
Agreement.
    In general, the Convention reflects a careful balance 
between the interests of the international community in 
maintaining freedom of navigation and those of coastal States 
in their offshore areas. The United States has important 
interests in both arenas. As the world's preeminent maritime 
power, the United States has a vital interest in freedom of 
navigation both to ensure that our military has the mobility it 
needs to protect U.S. security interests worldwide and to 
facilitate the transport of goods in international trade. In 
2006, 29.7 percent of all U.S. exports were shipped on the 
oceans, amounting to over $308 billion in exports. As a major 
coastal State, the United States has substantial interests in 
developing, conserving, and managing the vast resources of the 
oceans off its coasts, in protecting the marine environment, 
and in preventing activity off its coasts that threatens the 
safety and security of Americans. Preserving the careful 
balance the Convention strikes between these various competing 
interests is of great importance to the United States. A 
summary of the key provisions of the Convention and 
Implementing Agreement is set forth below.

Maritime Zones

    The Convention establishes a jurisdictional regime for the 
world's oceans based on a series of zones defined by reference 
to the distance from each State's coast. Under Part II of the 
Convention, a State may claim as its territorial sea an area up 
to 12 nautical miles (nm) from its coast. A State's territorial 
sea is subject to the State's sovereignty. Beyond 12 nm and up 
to 24 nm from its coast, a State may claim a contiguous zone in 
which the coastal State may exercise the limited control 
necessary to prevent or punish infringement of its customs, 
fiscal, immigration, or sanitary laws and regulations in its 
territory or territorial sea. Beyond its territorial sea, Part 
V of the Convention provides that a State may claim an area up 
to 200 nm from its coast as an exclusive economic zone (EEZ) in 
which it enjoys sovereign rights for the purpose of exploring, 
exploiting, conserving and managing living and non-living 
natural resources, as well as jurisdiction as provided for in 
the Convention with respect to, inter alia, marine scientific 
research and the protection and preservation of the marine 
environment. The Convention gives the United States the largest 
EEZ of any country in the world. The high seas beyond 200 nm 
from a State's coastline are open to all uses and are not 
subject to the jurisdiction of any State. The Convention 
establishes rules for drawing baselines to be used in measuring 
the distances from a State's coast that define these various 
zones.
    The Convention additionally addresses the delimitation of 
overlapping territorial seas, exclusive economic zones, and 
continental shelves. These provisions are fully consistent with 
U.S. law and would not require a change to the current maritime 
boundaries of the United States. Moreover, as reflected in 
questions for the record that are included in the forthcoming 
hearing print, the Convention's provisions would apply only to 
maritime boundary delimitation between countries and do not 
address boundary delimitation between U.S. States.

The Continental Shelf

    Part VI of the Convention provides that a coastal State 
exercises sovereign rights for the purpose of exploring and 
exploiting the natural resources of its continental shelf, 
which is comprised of the seabed and subsoil of the submarine 
areas that extend beyond the territorial sea throughout the 
natural prolongation of its land territory to the outer edge of 
the continental margin, or to a distance of 200 nm from the 
baselines where the outer edge of the continental margin does 
not extend up to that distance. The natural resources of the 
shelf consist of the mineral and other non-living resources of 
the seabed and subsoil, together with the living organisms 
belonging to sedentary species.
    The Convention establishes rules defining the continental 
shelf, as well as an expert body--the Commission on the Limits 
of the Continental Shelf--to consider and make recommendations 
to coastal States on matters related to the establishment of 
the outer limit of their continental shelf beyond 200 nm. If 
the coastal State agrees, the shelf limits set by that State on 
the basis of the recommendations are final and binding, thus 
providing important stability and certainty to these claims. 
The Convention gives the United States one of the largest 
continental shelves in the world. In the Arctic, for example, 
the U.S. continental shelf could run at least as far as 600 nm 
out from the coast.
    Under Part XI of the Convention (discussed below), mineral 
resources of the deep seabed (i.e., the seafloor beyond 
national jurisdiction) are administered by an international 
authority established by the Convention, and no State may claim 
or exercise sovereignty over the resources thereof, though 
States or individuals may exercise certain rights with regard 
to minerals in accordance with Part XI, as modified by the 1994 
Agreement.

Freedom of Navigation and Overflight

    The Convention provides protections for critical freedoms 
of navigation and overflight of the world's oceans. These 
include the prohibition of territorial sea claims beyond 12 nm 
and the express protection for and accommodation of passage 
rights through the territorial sea and archipelagic waters, 
including transit passage through straits and archipelagic sea 
lanes passage. They also include the express protection for and 
accommodation of the high seas freedoms of navigation, 
overflight, laying of submarine cables and pipelines, and 
related uses beyond the territorial sea, including areas where 
there are coastal State sovereign rights and jurisdiction, such 
as the EEZ and the continental shelf. United States Armed 
Forces rely on these navigation and overflight rights daily, 
and their protection is of paramount importance to U.S. 
national security.
    During the course of the committee's review, Members 
questioned whether joining the Convention would have an impact 
on the Proliferation Security Initiative (PSI). PSI is a global 
initiative aimed at stopping shipments of weapons of mass 
destruction, their delivery systems, and related materials 
worldwide. Testimony from the Executive Branch, including 
testimony from the Navy and the Coast Guard, was unanimous in 
the view that joining the Convention would have no adverse 
impact on, and would in fact strengthen, PSI. In particular, 
Admiral Mullen, now Chairman of the Joint Chiefs of Staff, 
testified in 2003 that becoming a Party to the Convention 
``would greatly strengthen [the Navy's] ability to support the 
objectives'' of PSI by reinforcing and codifying freedom of 
navigation rights on which the Navy depends for operational 
mobility. Admiral Walsh, the current Vice Chief of Naval 
Operations, testified on September 27, 2007, that joining the 
Convention would help the United States attract new and crucial 
PSI partners. Admiral Walsh stated that ``geographically 
strategic nations, such as Indonesia and Malaysia, would be 
more likely to join PSI if we, in turn, join the Convention.''

Protection and Preservation of the Marine Environment

    The Convention includes numerous provisions related to 
protection of the marine environment. For example, Part XII 
addresses multiple sources of marine pollution, including 
pollution from vessels, seabed activities, ocean dumping, and 
land-based sources, and promotes continuing improvement in the 
health of the world's oceans. Depending upon the source of 
marine pollution and the particular maritime zone in question, 
Part XII sets forth various obligations and authorizations 
relating to coastal States, flag States, and/or all States 
(such as to develop international standards). The provisions 
encourage Parties to work together to address issues of common 
and pressing concern. Another example is Article 21, which 
includes important rights for coastal States with regard to 
protection of the environment and natural resources in the 
territorial sea.
    Questions were raised during the course of the committee's 
review concerning whether the Convention, including its dispute 
settlement provisions, would apply to U.S. land-based 
activities. The committee received oral and written testimony 
on this question. Article 207 requires coastal States merely to 
``take into account'' internationally agreed rules, standards, 
and recommended practices and procedures. Alleged marine 
pollution by the United States from land-based sources would 
not be subject to dispute settlement under the Convention. 
Specifically, Article 297(1)(c) provides that only certain 
coastal State obligations related to marine pollution are 
subject to dispute settlement. Among other things, there needs 
to be a ``specified'' international rule or standard 
``applicable'' to the coastal State. There are no specified 
rules regarding land-based sources that are applicable to the 
United States that would be subject to dispute settlement. (As 
noted, even if there were specified rules or standards 
applicable to the United States, Article 207 would not require 
the coastal State to follow such standards, only to take them 
into account.) Furthermore, the ``enforcement'' provisions in 
Part XII (such as Article 213) do not address Party-to-Party 
dispute settlement. Rather, they either allocate enforcement 
responsibilities among flag States, port States, and coastal 
States or they address enforcement by Parties vis-a-vis private 
actors, such as their flag vessels or foreign flag vessels.
    Questions were also raised during the course of the 
committee's review as to whether provisions in Part XII that 
require Parties to take into account internationally agreed 
upon rules and standards regarding atmospheric pollution that 
affects the marine environment could be construed as committing 
the United States to the Kyoto Protocol to the United Nations 
Framework Convention on Climate Change, without the Protocol 
having been approved by the Senate. As reflected in the record, 
Executive Branch officials confirmed that this is not the case. 
The United States has not agreed to the Kyoto Protocol, and the 
Convention does not apply the Kyoto Protocol to the United 
States, either directly or indirectly.

Living Marine Resources

    Most living marine resources of importance to coastal 
States are located within 200 nm from coasts. The Convention's 
authorization of the establishment of EEZs, and provision for 
the sovereign rights and management authority of coastal States 
over living resources within such EEZs, bring such living 
marine resources under the jurisdiction of coastal States. The 
Convention provides that each coastal State has the sovereign 
right to make determinations under the Convention related to 
the utilization, conservation and management of living 
resources within its EEZ. The Convention also includes specific 
provisions for the conservation of marine mammals. While the 
Convention preserves the freedom to fish on the high seas, it 
makes that freedom subject to certain obligations, including 
the duty to cooperate in the conservation and management of the 
living resources in high seas areas.

Marine Scientific Research

    Part XIII of the Convention recognizes the critical role of 
marine scientific research in understanding oceanic processes 
and in informed decision making about uses of the oceans. 
Following a maritime zone approach, it provides coastal States 
with greater rights to regulate marine scientific research in 
their territorial seas than in the EEZ and on the continental 
shelf. All States have the right to conduct such research 
freely in high seas areas. Part XIII also provides for 
international cooperation to promote marine scientific 
research.

Deep Seabed Mining

    Part XI of the Convention, as fundamentally modified by the 
1994 Agreement, establishes a regime governing the exploration 
and exploitation of the seabed, ocean floor and subsoil thereof 
beyond the limits of national jurisdiction on the basis of 
capitalist, market-oriented principles. As modified, Part XI 
meets the objections raised by the United States and other 
industrialized countries concerning the original Convention. It 
is expected to provide a stable and internationally recognized 
framework in which mining can proceed in response to demand in 
the future for deep seabed minerals. The Convention establishes 
an international organization, the International Seabed 
Authority, to administer the regime. In light of questions 
raised during the committee's review of the Convention and 1994 
Agreement, it is worth noting that the Authority is not a 
United Nations institution. The Authority is an independent 
institution established by the Convention, which is located in 
Kingston, Jamaica and currently employs fewer than 40 
individuals.
    Responding to a principal U.S. objection to the Convention 
as it was originally concluded in 1982, the 1994 Agreement 
provides for a decisionmaking structure for the Authority that 
protects U.S. interests. Under Section 3(15)(a) of the Annex to 
the 1994 Agreement, the United States is guaranteed a seat on 
the Council in perpetuity. The decisionmaking process within 
the Authority is fairly complex, but any decision that would 
result in a substantive obligation on the United States, or 
that would have financial or budgetary implications, would 
require U.S. consent. Moreover, the United States would need to 
approve the adoption of any amendment to the deep seabed mining 
provisions.
    In response to other U.S. objections, the 1994 Agreement 
also eliminates mandatory technology transfer provisions and 
non-market based controls on the levels of mineral production 
from the deep seabed that were part of the Convention as 
originally concluded. Moreover, Article 302 of the Convention 
explicitly provides that nothing in the Convention requires a 
Party to disclose information that ``is contrary to the 
essential interests of its security.''

                 IV. ENTRY INTO FORCE AND DENUNCIATION

    In accordance with Article 308 of the Convention and 
Article 6 of the 1994 Agreement, the Convention and the 1994 
Agreement will enter into force for the United States on the 
thirtieth day following the date on which the United States 
deposits its instrument of accession to the Convention and its 
instrument of ratification to the 1994 Agreement with the 
Secretary-General of the United Nations.
    A Party may denounce (withdraw from) the Convention on one 
year's notice in accordance with Article 317.

                      V. IMPLEMENTING LEGISLATION

    The United States has acted in accordance with the 
Convention's balance of interests relating to the traditional 
uses of the oceans since it was directed to do so in a 1983 
statement issued by President Reagan. The United States does 
not need to enact new legislation upon joining the Convention 
and the 1994 Agreement to supplement or modify existing U.S. 
law. Implementing legislation, however, will be necessary at 
some point after U.S. accession in order to enforce decisions 
of the Seabed Disputes Chamber, which is addressed below in 
connection with understanding 22 of the resolution of advice 
and consent.

                          VI. COMMITTEE ACTION

    The Convention and the 1994 Agreement were submitted to the 
Senate and referred to the committee on October 7, 1994. Two 
hearings were held on October 14, 2003 and October 21, 2003, at 
which testimony was received from experts on oceans law and 
policy, former U.S. negotiators of the Convention, 
representatives of the Departments of State, Defense, and the 
U.S. Coast Guard, and representatives of organizations 
interested in oceans issues (a transcript of this hearing may 
be found in Exec. Rept. 108-10). In February 2004, the 
committee ordered the Convention and the 1994 Agreement 
favorably reported by a vote of 19-0. No action was taken by 
the Senate and, under the operation of the Senate rules, the 
Convention and the 1994 Agreement were returned to the 
committee at the end of the 108th Congress.
    This year, the committee held two public hearings on the 
Convention and the 1994 Agreement on September 27 and October 
4. (A hearing print of these sessions will be forthcoming.) 
Testimony was received from John D. Negroponte, Deputy 
Secretary of State; Gordon England, Deputy Secretary of 
Defense; Admiral Patrick M. Walsh, Vice Chief of Naval 
Operations; Admiral Vern Clark, USN (Ret.), Former Chief of 
Naval Operations; Bernard H. Oxman, Professor at the University 
of Miami School of Law; Frank J. Gaffney, Jr., President of the 
Center for Security Policy; Fred L. Smith, Jr., President of 
the Competitive Enterprise Institute; Paul C. Kelly, President 
of the Gulf of Mexico Foundation; Joseph J. Cox, President of 
the Chamber of Shipping of America; and Douglas R. Burnett, 
Partner at Holland & Knight, LLP. On October 31, 2007, the 
committee again considered the Convention and the 1994 
Agreement, and ordered them favorably reported by a roll call 
vote of 17-4, with a quorum present and a majority of those 
members physically present and voting in the affirmative. The 
following Senators voted in the affirmative: Biden, Dodd, 
Kerry, Feingold, Boxer, Nelson, Obama, Menendez, Cardin, Casey, 
Webb, Lugar, Hagel, Corker, Sununu, Voinovich, and Murkowski. 
The following Senators voted in the negative: Coleman, DeMint, 
Isakson, and Vitter.

               VII. COMMITTEE RECOMMENDATION AND COMMENTS

    The committee recommends that the Senate give its advice 
and consent to accession to the Convention and ratification of 
the Implementing Agreement. The committee believes that the 
Convention advances important U.S. interests in a number of 
areas. It advances U.S. national security interests by 
preserving the rights of navigation and overflight through and 
above the world's oceans on which the military relies to 
protect U.S. interests around the world, and it enhances the 
protection of these rights by providing binding mechanisms to 
enforce them. It advances U.S. economic interests by enshrining 
the right of the United States to explore and exploit the vast 
natural resources of the oceans out to 200 nm from our 
coastline, and of our continental shelf beyond 200 nm, and by 
protecting freedom of navigation on the oceans over which 29.7 
percent of all U.S. exports and 52.3 percent of all U.S. 
imports were transported in 2006. It advances U.S. interests in 
the protection of the environment by protecting and preserving 
the marine environment from pollution from a variety of 
sources, and by establishing a framework for further 
international action to combat pollution. Becoming Party to the 
Convention also advances the ability of the United States to 
play a leadership role in global oceans issues, including by 
allowing the United States to participate fully in institutions 
created by the Convention such as the International Seabed 
Authority, the Commission on the Limits of the Continental 
Shelf, and the International Tribunal for the Law of the Sea.
    In an era when the United States faces growing energy 
vulnerability, failing to accede to the Convention will 
constrain the opportunities of U.S. energy companies to explore 
beyond 200 nm. Mr. Paul Kelly, testifying on behalf of the oil 
and gas industry, asserted that under the Convention, the 
United States would have the opportunity to receive 
international recognition of its economic sovereignty over more 
than 291,000 square miles of extended continental shelf. Much 
of this is in the Arctic, which holds approximately one quarter 
of the world's undiscovered oil and natural gas, according to 
the U.S. Geological Survey World Petroleum Assessment in 2000. 
As Mr. Kelly testified to the committee: ``by some estimates, 
in the years ahead we could see a historic dividing up of many 
millions of square kilometers of offshore territory with 
management rights that accrue . . . . So, our question is, how 
much longer can the United States afford to be a laggard in 
joining this process?''
    The committee believes it important that U.S. accession to 
the Convention be completed promptly. The Convention became 
open for amendment in November 2004. As noted above, in 
negotiating the Convention, the United States was successful in 
achieving a regime that struck a careful balance in ensuring 
protection of many important U.S. interests. If the United 
States is not a Party to the Convention, our ability to protect 
the critically important balance of rights that we fought hard 
to achieve in the Convention will be significantly diminished. 
In addition, the Convention's Commission on the Limits of the 
Continental Shelf is now making recommendations with regard to 
other countries' submissions that could affect the United 
States' own extended continental shelf. Full U.S. participation 
in this process requires us to be a Party to the Convention.
    The President has expressed his strong support for U.S. 
accession to the Convention and ratification of the 1994 
Agreement. In addition, among others, the National Security 
Adviser, the Joint Chiefs of Staff, the Secretaries of Homeland 
Security, Commerce and the Interior, four former Commandants of 
the U.S. Coast Guard, every living Chief of Naval Operations, 
former Secretaries of State Shultz, Haig, Baker and Albright, 
and every living Legal Adviser to the U.S. Department of State 
have written to the committee to express their support for the 
Convention and the 1994 Agreement.
    The committee has received letters in support of U.S. 
accession to the Convention and ratification of the 1994 
Agreement from affected industry groups, environmental groups, 
and other affected associations including the Chamber of 
Commerce of the United States of America, the Chamber of 
Shipping of America, the National Foreign Trade Council, the 
American Petroleum Institute, the International Association of 
Drilling Contractors, the Independent Petroleum Association of 
America, American Exploration and Production Council, U.S. Oil 
and Gas Association, National Ocean Industries Association, the 
National Marine Manufacturers Association, AT & T, Sprint, Tyco 
Communications Inc., the North American Submarine Cable 
Association, Pacific Crossing Limited, Pacific Telecom Cable, 
the National Fisheries Institute, the U.S. Tuna Foundation, the 
Ocean Conservancy, the World Wildlife Fund, the Humane Society 
of the United States, the American Bar Association, the Council 
on Ocean Law, the U.S. Arctic Research Commission, the Center 
for Seafarers' Rights, Citizens for Global Solutions, the 
League of Conservation Voters, the National Environmental 
Trust, the Natural Resources Defense Council, the Pew Oceans 
Commission, and the Transportation Institute. The committee has 
also received a statement of support for the Convention and the 
1994 Agreement from the U.S. Commission on Oceans Policy (an 
official body established by Congress).
    The committee has received letters of opposition to U.S. 
accession to the Convention and ratification of the 1994 
Agreement from the following organizations: The American 
Conservative Union, State Department Watch, Freedom Alliance, 
America's Survival, and the Competitive Enterprise Institute.

Discussion Regarding the Resolution of Advice and Consent

    The committee has included a number of declarations, 
understandings, and conditions in the resolution of advice and 
consent. Article 309 of the Convention provides that no 
reservations or exceptions may be made to the Convention unless 
expressly permitted by other articles (such as with respect to 
disputes settlement). Article 310 provides that a State may, 
however, make statements, however phrased or named, with a 
view, inter alia, to harmonizing its laws and regulations with 
the provisions of the Convention, provided such statements do 
not purport to modify the effect of the Convention in their 
application to that State.
    Section two of the resolution contains two declarations 
relating to the dispute settlement procedures under the 
Convention. The first declaration concerns the forum for 
dispute settlement. Pursuant to Article 287 of the Convention, 
a State, when adhering to the Convention or thereafter, is able 
to choose, by written declaration, one or more of the means for 
the settlement of disputes (i.e., the International Tribunal 
for the Law of the Sea, the International Court of Justice, 
arbitration under Annex VII, or special arbitration under Annex 
VIII for certain disputes, such as fisheries and marine 
scientific research). The declaration states that the United 
States chooses special arbitration for all the categories of 
disputes to which it may be applied and arbitration for other 
disputes.
    The second declaration concerns the exclusion of certain 
categories of disputes from the dispute settlement procedures. 
Article 298 of the Convention permits a State to opt out of 
binding dispute settlement procedures with respect to one or 
more enumerated categories of disputes, namely disputes 
regarding maritime boundaries between neighboring States, 
disputes concerning military activities and certain law 
enforcement activities, and disputes in respect of which the UN 
Security Council is exercising the functions assigned to it by 
the UN Charter. The declaration states that the United States 
elects to exclude all three of these categories of disputes 
from binding dispute settlement, which would include all of the 
procedures related thereto.
    With respect to disputes concerning military activities, 
the declaration further states that U.S. consent to accession 
is conditioned upon the understanding that, under Article 
298(1)(b), each State Party has the exclusive right to 
determine whether its activities are or were ``military 
activities,'' and that such determinations are not subject to 
review. Questions were raised during the course of the 
committee's review as to whether intelligence activities would 
be considered covered by the term ``military activities.'' 
Consistent with prior testimony from officials of the 
Department of Defense and the Central Intelligence Agency 
before the Select Committee on Intelligence, the Department of 
State confirmed, in a letter to Chairman Biden (included in the 
forthcoming hearing print), that intelligence activities at sea 
are military activities for purposes of the U.S. dispute 
settlement exclusion under the Convention and thus the binding 
dispute settlement procedures would not apply to U.S. 
intelligence activities at sea.
    Section three of the resolution contains a series of 
understandings and declarations addressing specific issues 
raised by the Convention. The first five understandings relate 
principally to freedoms of navigation and overflight and 
related uses of the sea under the Convention. As noted above, 
these rights and freedoms are of critical importance to the 
U.S. military, and in particular its need for global mobility.
    The first understanding states that nothing in the 
Convention impairs the inherent right of self-defense or rights 
during armed conflict, including Convention provisions that 
refer to ``peaceful uses'' or ``peaceful purposes.'' This 
understanding, which is a statement of fact, underscores the 
importance the United States attaches to its right under 
international law to take appropriate actions in self-defense 
or in times of armed conflict, including, where necessary, the 
use of force.
    The second, third, and fourth understandings address 
navigational rights and freedoms in various maritime zones 
under the Convention. The second understanding focuses on 
innocent passage in the territorial sea, the third focuses on 
transit passage and archipelagic sea lanes passage under Parts 
III and IV of the Convention, and the fourth focuses on high 
seas freedoms of navigation and overflight in the exclusive 
economic zone. Collectively, these understandings confirm that 
various activities historically undertaken by the U.S. Armed 
Forces in these zones are consistent with the rights and 
freedoms set forth in the Convention.
    Several points are worth noting in particular in connection 
with the second understanding regarding innocent passage:


   Paragraph 2(B) clarifies that Article 19(2) of the 
        Convention contains an exhaustive list of activities 
        that render passage non-innocent. The committee 
        understands that the list of activities in no way 
        narrows the right of innocent passage the United States 
        currently enjoys under the 1958 Territorial Sea 
        Convention and customary international law. On the 
        contrary, the Convention improves upon the 1958 
        Convention's innocent passage regime from the 
        perspective of U.S. navigational mobility by 
        establishing a more objective standard for the meaning 
        of ``innocent'' passage based on specifically 
        enumerated activities, and by setting forth an 
        exhaustive list of those activities that will render 
        passage not ``innocent.'' (Article 20 provides that 
        submarines and other underwater vehicles are required 
        to navigate on the surface and to show their flag in 
        order to enjoy the right of innocent passage; however, 
        failure to do so is not characterized as inherently not 
        ``innocent.'')
    The committee further understands that, as in the case of 
the analogous provisions in the 1958 Convention on the 
Territorial Sea and Contiguous Zone (Articles 18, 19, and 20), 
the innocent passage provisions of the Convention set forth 
conditions for the enjoyment of the right of innocent passage 
in the territorial sea but do not prohibit or otherwise affect 
activities or conduct that is inconsistent with that right and 
therefore not entitled to that right.

   Paragraph 2(A) states the U.S. understanding that, among 
        other things, the ``purpose'' of a ship is not relevant 
        to the enjoyment of innocent passage, and paragraph 
        2(C) states the U.S. understanding that a determination 
        of non-innocence cannot be made, among other things, on 
        the basis of a ship's ``purpose.'' The reference to 
        ``purpose'' is intended to make clear, for example, 
        that a ship navigating for the sole purpose of 
        exercising its right of innocent passage is entitled to 
        the right of innocent passage but that would not 
        preclude a ship's purpose from being taken into account 
        in assessing whether that ship posed a threat to use 
        force within the meaning of Article 19(2)(a).

   Understanding 2(D) reiterates the longstanding U.S. 
        position that the Convention does not authorize a 
        coastal State to condition the exercise of the right of 
        innocent passage by any ships, including warships, on 
        the giving of prior notification to or the receipt of 
        prior permission from the coastal State. The 
        Convention, and this understanding, do not, however, 
        affect the ability of Parties to the Convention to 
        agree among themselves to a prior notification regime. 
        For example, such regimes have been negotiated under 
        the auspices of the International Maritime 
        Organization. In this regard, regulation V/11 (ship 
        reporting systems) and regulation V/19.2.4 (automatic 
        identification systems) of the regulations annexed to 
        the International Convention for the Safety of Life at 
        Sea, 1974, as amended, should be noted.


    The fifth understanding concerns marine scientific 
research. Part XIII of the Convention addresses the rights of 
coastal States to require consent for marine scientific 
research undertaken in marine areas under their jurisdiction. 
The understanding indicates that the term ``marine scientific 
research'' does not include certain activities, such as 
military activities, including military surveys. It is an 
illustrative list; therefore, there are other activities, such 
as operational oceanography, that are also not considered 
marine scientific research.
    The sixth understanding expresses the U.S. view that those 
declarations and statements of other Parties that purport to 
limit navigation, overflight, or other rights and freedoms in 
ways not permitted by the Convention (such as those not in 
conformity with the Convention's provisions relating to straits 
used for international navigation) contravene the Convention 
(specifically Article 310, which does not permit such 
declarations and statements). While it is not legally necessary 
for the United States to comment on declarations and statements 
that are inconsistent with the Convention, given that 
reservations are not permitted under the Convention, the 
committee believes it appropriate and desirable to make clear 
the U.S. position on such declarations and statements.
    The resolution next contains a series of understandings 
addressing principally environment-related aspects of the 
Convention, including provisions of the Convention addressing 
marine pollution enforcement. Over the past decade or more, the 
Executive Branch has vigorously enforced U.S. marine pollution 
laws consistent with the Convention's provisions relevant to 
foreign flag vessels. In light of substantial experience 
gained, the Executive Branch has proposed, and the committee 
agrees, that it would be desirable to highlight certain aspects 
of the Convention's provisions and harmonize certain 
terminology as between the Convention and U.S. law. The 
committee also notes that marine pollution can come from a 
variety of sources. For example, the committee notes that air 
pollution from ships, which is the subject of MARPOL Annex VI, 
constitutes marine pollution due to the impact such air 
pollution can have on the marine environment.
    The seventh understanding addresses an unmeritorious 
assertion that has occasionally been made in relation to 
various U.S. laws that restrict the import of goods to promote 
observance of a particular environmental or conservation 
standard, such as the protection of dolphins or sea turtles. It 
confirms that the Convention in no way limits a State's ability 
to prohibit or restrict imports in order to, among other 
things, promote or require compliance with environmental and 
conservation laws, norms, and objectives.
    The eighth understanding states that certain Convention 
provisions apply only to a particular source of marine 
pollution (namely, pollution from vessels, as referred to in 
Article 211) and not other sources of marine pollution, such as 
dumping. The ninth understanding harmonizes the Convention's 
``clear grounds'' standard in Articles 220 and 226 with the 
U.S. ``reasonable suspicion'' standard. The tenth understanding 
concerns Article 228(2), which provides for a three-year 
statute of limitations concerning certain marine pollution 
proceedings. The understanding sets forth the limits of the 
applicability of the provision.
    The eleventh understanding addresses the scope of Article 
230, which governs the use of monetary penalties in cases 
involving pollution of the marine environment by foreign 
vessels. The understanding harmonizes aspects of Article 230 
with U.S. law and practice for the enforcement of pollution 
laws. The reference to ``corporal punishment'' in the 
understanding is not addressed to any U.S. laws authorizing 
such punishment with regard to ship master and sailors (the 
committee is unaware of any such laws); rather it is aimed at 
other States that may provide for such punishment. The Article 
thus provides certain protections for U.S. ship masters and 
sailors abroad.
    The twelfth understanding clarifies that the marine 
pollution provisions of the Convention, specifically sections 6 
and 7 of Part XII, do not limit a State's authority to impose 
penalties for, among other things, non-pollution offenses (such 
as false statement violations under 18 U.S.C. 1001) or marine 
pollution violations that take place in a State's ports, 
rivers, harbors, or offshore terminals.
    The thirteenth understanding provides that the Convention 
confirms and does not constrain the longstanding right of a 
State to impose and enforce conditions for the entry of foreign 
vessels into its ports, rivers, harbors, or offshore terminals. 
This sovereign right enables States to address important 
concerns, such as security and pollution, regardless of whether 
action to address such concerns has been or will be taken at 
the international level and regardless of whether or not the 
condition is directly related to the ports, rivers, harbors, or 
offshore terminals. These conditions might also apply as a 
matter of port departure and compliance with such conditions 
can be considered in approving subsequent port entries. The 
understanding contains illustrative examples of an 
environmental nature, namely a requirement that ships exchange 
ballast water beyond 200 nautical miles from shore and a 
requirement that tank vessels carrying oil be constructed with 
double hulls. Another example of the U.S. exercise of this 
right is the requirement for prior notice of arrival in port of 
foreign vessels.
    The fourteenth understanding relates to Article 21(2) of 
the Convention, which provides that the laws a coastal State 
may adopt relating to innocent passage through the territorial 
sea shall not apply to the ``design, construction, manning or 
equipment'' of foreign ships unless they are giving effect to 
``generally accepted international rules or standards.'' This 
understanding makes clear that certain types of measures would 
not constitute measures applying to ``design, construction, 
manning or equipment'' of foreign ships and would therefore not 
be limited by this provision. The list is illustrative, not 
exhaustive.
    The fifteenth understanding addresses the issue of 
potential marine pollution from industrial operations (such as 
seafood processing) on board a foreign vessel. While the 
Convention does not specifically designate on-board industrial 
operations as a source of marine pollution (as it does, for 
example, for vessel source pollution and pollution from 
dumping), this understanding makes clear that the Convention 
nevertheless supports a coastal State's regulation of 
discharges into the marine environment resulting from such 
operations. A variety of provisions in the Convention might be 
applicable depending upon the circumstances. It should be noted 
that the United States currently regulates discharges from 
seafood processing operations on board foreign vessels in its 
territorial sea and EEZ.
    Similarly, the sixteenth understanding addresses the issue 
of invasive species, which is a major environmental issue 
facing many States in the United States. This understanding 
affirms that the Convention supports the ability of a coastal 
State, such as the United States, to exercise its domestic 
authority to regulate the introduction into the marine 
environment of alien or new species. A variety of Convention 
provisions might be applicable, depending upon the 
circumstances (see, e.g., Articles 21, 56, 196, or 211). The 
ability to rely on various authorities is important to ensure 
that the United States and other coastal States have 
appropriate flexibility to fully address this problem.
    The seventeenth understanding addresses fisheries 
management issues. The United States implements the living 
marine resource provisions of the Convention through a variety 
of domestic laws. For fisheries issues, these provisions are 
implemented primarily through the Magnuson-Stevens Fishery 
Conservation and Management Act, 16 U.S.C. 1801 et seq. 
(Magnuson-Stevens Act). Article 56(1)(a) of the Convention 
establishes that, in the exclusive economic zone, a coastal 
State has sovereign rights for the purpose of exploring and 
exploiting, conserving and managing the natural resources, 
whether living or non-living. In the United States, such 
measures have included fisheries management pursuant to the 
Magnuson-Stevens Act, the establishment of no-anchoring areas 
to protect coral reefs, and the creation of marine sanctuaries 
under the National Marine Sanctuaries Act. This provision also 
provides authority to address such threats as ship strikes of 
cetaceans.
    The Magnuson-Stevens Act provides a national framework for 
conserving and managing marine fisheries within the U.S. EEZ. 
The Act is completely consistent with the Convention and 
enables the United States to exercise its rights and implement 
its fisheries conservation and management obligations under 
Articles 61 and 62 of the Convention. The Magnuson-Stevens Act 
provides the United States with the authority to make 
determinations related to utilization, conservation and 
management of living resources within its EEZ, including 
defining optimum yield and allowable catch, considering effects 
on non-target species, and determining what, if any, surplus 
may exist. Articles 61 and 62 provide that the coastal State 
has the exclusive right to make these determinations. In 
particular, under both the Magnuson-Stevens Act and Article 
62(2), the United States has no obligation to give another 
State access to fisheries in its EEZ unless, after determining 
the optimum yield and allowable catch under the Act, the United 
States has determined both that there is surplus over and above 
the allowable catch and that the coastal State does not or will 
not have the capacity to harvest that surplus. In such event, 
access may be provided under reasonable terms and conditions 
established by the coastal State. The Magnuson-Stevens Act and 
other legislation provide the United States with the authority 
to cooperate with other States in managing fisheries resources 
that are highly migratory or that straddle jurisdictional 
lines, in order to comply with obligations under Articles 63, 
64, 118, and 119. Consistent with Article 297(3), binding 
dispute settlement does not apply to disputes relating to a 
coastal State's discretionary powers for determining the 
allowable catch, its harvesting capacity, the allocation of 
surpluses to other States, and the terms and conditions 
established in its conservation and management laws and 
regulations.
    The eighteenth understanding concerns Article 65, which 
addresses marine mammals. In part, Article 65 provides that the 
Convention does not restrict the right of a coastal State or 
the competence of an international organization to take 
stricter measures than those provided in the Convention. With 
respect to this provision, the understanding notes that it lent 
direct support to the establishment of the international 
moratorium on commercial whaling that is in place and that it 
lends current support to the creation of sanctuaries and other 
conservation measures. Article 65 also provides that, in the 
case of cetaceans, States shall work through appropriate 
international organizations for their conservation, management 
and study. The understanding indicates, with respect to this 
provision, that such cooperation applies not only to large 
whales but to all cetaceans.
    The nineteenth understanding makes clear that the term 
``sanitary laws and regulations'' in Article 33 is not limited 
to the transmittal of human illnesses, but may include, for 
example, laws and regulations to protect human health from 
pathogens being introduced into the territorial sea. This 
example is non-exhaustive.
    The next five understandings and declarations generally 
address procedural and constitutional matters.
    The twentieth understanding relates to decision making in 
the Council, the executive organ of the International Seabed 
Authority that has substantial decision making authority. 
Article 161(8)(d) provides for certain decisions of the Council 
to be taken by consensus. The United States will, by virtue of 
the 1994 Agreement, have a permanent seat on the Council. As 
such, the United States will be in a position to block 
consensus in the Council on decisions subject to consensus 
decision making. The Convention, as modified by the Agreement, 
is structured to ensure consensus decision making for the most 
significant decisions, including decisions resulting in binding 
substantive obligations on States Parties. The understanding 
reinforces the negotiated agreement that decisions adopted by 
procedures other than the consensus procedure in Article 
161(8)(d) will involve administrative, institutional or 
procedural matters and will not result in binding substantive 
obligations on the United States.
    The twenty-first understanding addresses certain decisions 
of the Assembly, the primary body of the International Seabed 
Authority. Specifically, the Assembly, under Article 160(2)(e), 
assesses the contributions of members to the administrative 
budget of the Authority until the Authority has sufficient 
income from other sources to meet its administrative expenses. 
Section 3(7) of the Annex to the 1994 Agreement provides that 
``[d]ecisions of the Assembly . . . having financial or 
budgetary implications shall be based on the recommendations of 
the Finance Committee.'' Under Section 9(3) of the Annex to the 
1994 Implementing Agreement seats are guaranteed on the Finance 
Committee for ``the five largest contributors to the 
administrative budget of the Authority'' until the Authority 
has sufficient funds other than assessed contributions to meet 
its administrative expenses. Because such contributions are 
based on the United Nations scale of assessments (and because 
the United States is the largest contributor on that scale), 
the United States will have a seat on the Finance Committee so 
long as the Authority supports itself through assessed 
contributions. The understanding ties these related provisions 
together to make clear that no assessed contributions could be 
decided by the Assembly without the agreement of the United 
States in the Finance Committee.
    The twenty-second declaration addresses Article 39 of Annex 
VI of the Convention, which provides for decisions of the 
Seabed Disputes Chamber to be enforceable in the territories of 
the States Parties in the same manner as judgments or orders of 
the highest court of the State Party in whose territory the 
enforcement is sought. Because of potential constitutional 
concerns regarding direct enforceability of this provision in 
U.S. courts and because Article 39 does not require any 
particular manner in which Chamber decisions must be made 
enforceable, the declaration provides that, for the United 
States, such decisions shall be enforceable only in accordance 
with procedures established by implementing legislation and 
that such decisions shall be subject to such legal and factual 
review as is constitutionally required and without precedential 
effect in any court of the United States. Given the current 
undeveloped state of deep seabed mining, such legislation would 
not be necessary before U.S. accession to the Convention.
    The twenty-third understanding focuses on the adoption of 
amendments to section 4 of Annex VI of the Convention, which 
relates to the Seabed Disputes Chamber, which is established 
under the Convention to resolve certain disputes arising in 
connection with deep sea bed mining. The basic rules for 
amending Annex VI are set forth in section 5 of that Annex. It 
is clear from Article 41 of that Annex, with respect to 
amendments to Annex VI other than to section 4, that the United 
States could block adoption of such an amendment (either 
through the ability to block afforded by Article 313(2) or 
through the consensus procedure at a conference of the States 
Parties). Regarding amendments to section 4 of Annex VI, 
related to the Seabed Disputes Chamber, Article 41(2) of Annex 
VI provides that such amendments may be adopted only in 
accordance with Article 314, which in turn requires that such 
amendments be approved by the Assembly following approval by 
the Council. Article 314 does not specify the decisionmaking 
rule by which the Council must approve the amendment before the 
Assembly may adopt it; Article 161(8), which lists certain 
categories of decisions and their corresponding decision making 
rules, also does not specifically address adoption of 
amendments to section 4 of Annex IV. Turning to Article 
161(8)(f) to determine the default rule for decisions within 
the authority of the Council for which the decision making rule 
is not specified, the Council is to decide ``by consensus'' 
which subparagraph of Article 161(8) will apply. Section 3 of 
the Annex to the 1994 Agreement conflates subparagraphs (b) and 
(c) of Article 161(8), but it does not affect situations where 
the Convention, as in the case of 161(8)(f), provides for 
decision by consensus in the Council. Because the analysis is 
reasonably complex, the committee agrees with the Executive 
Branch that an understanding on this point is desirable.
    The twenty-fourth declaration relates to the question of 
whether the Convention and 1994 Agreement are self-executing in 
the United States. The committee has included a declaration 
that the Convention and the 1994 Agreement, including 
amendments thereto and rules, regulations, and procedures 
thereunder, are not self-executing for the United States, with 
the exception of provisions related to privileges and 
immunities (Articles 177-183, Article 13 of Annex IV, and 
Article 10 of Annex VI). Consistent with the view of both the 
committee and the Executive Branch, the Convention and 1994 
Agreement, including the environmental provisions of the 
Convention, do not create private rights of action or other 
enforceable individual legal rights in U.S. courts. The United 
States, as a Party, would be able to implement the Convention 
through existing laws, regulations, and practices (including 
enforcement practices), which are consistent with the 
Convention and which would not need to change in order for the 
United States to meet its Convention obligations. Except as 
noted in connection with declaration twenty-two above, the 
United States does not need to enact any new legislation to 
supplement or modify existing U.S. law.
    Section four of the resolution contains five conditions 
that relate to procedures within the United States for 
considering amendments proposed to be made to the Convention. 
The first three conditions provide for the President to inform 
and consult with the Foreign Relations Committee about proposed 
amendments to the Convention. The fourth condition provides 
that all amendments to the Convention, other than amendments 
under Article 316(5) of the Convention of a technical or 
administrative nature, shall be submitted by the President to 
the Senate for its advice and consent. The committee expects 
that any such technical or administrative amendments would not 
impose substantive obligations upon the United States.
    The fifth condition relates to Article 316(5) of the 
Convention, which provides for any amendment relating 
exclusively to activities in the Area (which is defined in 
Article 1(1)(1)) and any amendment to Annex VI to enter into 
force for all States Parties one year following the deposit of 
instruments of ratification or accession by three fourths of 
the States Parties. There is thus a possibility that such an 
amendment, if adopted (which would require the consent or 
acquiescence of the U.S. Executive Branch via the U.S. 
representative on the Council), could enter into force for the 
United States without U.S. ratification. The declaration 
provides that the United States will take all necessary steps 
under the Convention to ensure that amendments subject to this 
procedure are adopted in conformity with the treaty clause in 
Article II, Section 2 of the Constitution. This might involve 
not joining in consensus if an amendment were of such a nature 
that it was constitutionally imperative that it receive Senate 
advice and consent before binding the United States. The 
declaration highlights the amendment procedure but does not 
specifically address under what circumstances a constitutional 
issue might arise.

     VIII. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO RATIFICATION

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND 
                    UNDERSTANDINGS.

    The Senate advises and consents to the accession to the 
United Nations Convention on the Law of the Sea, with annexes, 
adopted on December 10, 1982 (hereafter in this resolution 
referred to as the ``Convention''), and to the ratification of 
the Agreement Relating to the Implementation of Part XI of the 
United Nations Convention on the Law of the Sea, with annex, 
adopted on July 28, 1994 (hereafter in this resolution referred 
to as the ``Agreement'') (T.Doc. 103-39), subject to the 
declarations of section 2, to be made under articles 287 and 
298 of the Convention, the declarations and understandings of 
section 3, to be made under article 310 of the Convention, and 
the conditions of section 4.

SECTION 2. DECLARATIONS UNDER ARTICLES 287 AND 298.

    The advice and consent of the Senate under section 1 is 
subject to the following declarations:
    (1) The Government of the United States of America 
declares, in accordance with article 287(1), that it chooses 
the following means for the settlement of disputes concerning 
the interpretation or application of the Convention:
          (A) a special arbitral tribunal constituted in 
        accordance with Annex VIII for the settlement of 
        disputes concerning the interpretation or application 
        of the articles of the Convention relating to (1) 
        fisheries, (2) protection and preservation of the 
        marine environment, (3) marine scientific research, and 
        (4) navigation, including pollution from vessels and by 
        dumping; and
          (B) an arbitral tribunal constituted in accordance 
        with Annex VII for the settlement of disputes not 
        covered by the declaration in subparagraph (A).
    (2) The Government of the United States of America 
declares, in accordance with article 298(1), that it does not 
accept any of the procedures provided for in section 2 of Part 
XV (including, inter alia, the Seabed Disputes Chamber 
procedure referred to in article 287(2)) with respect to the 
categories of disputes set forth in subparagraphs (a), (b), and 
(c) of article 298(1). The United States further declares that 
its consent to accession to the Convention is conditioned upon 
the understanding that, under article 298(1)(b), each State 
Party has the exclusive right to determine whether its 
activities are or were ``military activities'' and that such 
determinations are not subject to review.

SECTION 3. OTHER DECLARATIONS AND UNDERSTANDINGS UNDER ARTICLE 310.

    The advice and consent of the Senate under section 1 is 
subject to the following declarations and understandings:
    (1) The United States understands that nothing in the 
Convention, including any provisions referring to ``peaceful 
uses'' or ``peaceful purposes,'' impairs the inherent right of 
individual or collective self-defense or rights during armed 
conflict.
    (2) The United States understands, with respect to the 
right of innocent passage under the Convention, that--
          (A) all ships, including warships, regardless of, for 
        example, cargo, armament, means of propulsion, flag, 
        origin, destination, or purpose, enjoy the right of 
        innocent passage;
          (B) article 19(2) contains an exhaustive list of 
        activities that render passage non-innocent;
          (C) any determination of non-innocence of passage by 
        a ship must be made on the basis of acts it commits 
        while in the territorial sea, and not on the basis of, 
        for example, cargo, armament, means of propulsion, 
        flag, origin, destination, or purpose; and
          (D) the Convention does not authorize a coastal State 
        to condition the exercise of the right of innocent 
        passage by any ships, including warships, on the giving 
        of prior notification to or the receipt of prior 
        permission from the coastal State.
    (3) The United States understands, concerning Parts III and 
IV of the Convention, that--
          (A) all ships and aircraft, including warships and 
        military aircraft, regardless of, for example, cargo, 
        armament, means of propulsion, flag, origin, 
        destination, or purpose, are entitled to transit 
        passage and archipelagic sea lanes passage in their 
        ``normal mode'';
          (B) ``normal mode'' includes, inter alia--
                  (i) submerged transit of submarines;
                  (ii) overflight by military aircraft, 
                including in military formation;
                  (iii) activities necessary for the security 
                of surface warships, such as formation steaming 
                and other force protection measures;
                  (iv) underway replenishment; and
                  (v) the launching and recovery of aircraft;
          (C) the words ``strait'' and ``straits'' are not 
        limited by geographic names or categories and include 
        all waters not subject to Part IV that separate one 
        part of the high seas or exclusive economic zone from 
        another part of the high seas or exclusive economic 
        zone or other areas referred to in article 45;
          (D) the term ``used for international navigation'' 
        includes all straits capable of being used for 
        international navigation; and
          (E) the right of archipelagic sea lanes passage is 
        not dependent upon the designation by archipelagic 
        States of specific sea lanes and/or air routes and, in 
        the absence of such designation or if there has been 
        only a partial designation, may be exercised through 
        all routes normally used for international navigation.
    (4) The United States understands, with respect to the 
exclusive economic zone, that--
          (A) all States enjoy high seas freedoms of navigation 
        and overflight and all other internationally lawful 
        uses of the sea related to these freedoms, including, 
        inter alia, military activities, such as anchoring, 
        launching and landing of aircraft and other military 
        devices, launching and recovering water-borne craft, 
        operating military devices, intelligence collection, 
        surveillance and reconnaissance activities, exercises, 
        operations, and conducting military surveys; and
          (B) coastal State actions pertaining to these 
        freedoms and uses must be in accordance with the 
        Convention.
    (5) The United States understands that ``marine scientific 
research'' does not include, inter alia--
          (A) prospecting and exploration of natural resources;
          (B) hydrographic surveys;
          (C) military activities, including military surveys;
          (D) environmental monitoring and assessment pursuant 
        to section 4 of Part XII; or
          (E) activities related to submerged wrecks or objects 
        of an archaeological and historical nature.
    (6) The United States understands that any declaration or 
statement purporting to limit navigation, overflight, or other 
rights and freedoms of all States in ways not permitted by the 
Convention contravenes the Convention. Lack of a response by 
the United States to a particular declaration or statement made 
under the Convention shall not be interpreted as tacit 
acceptance by the United States of that declaration or 
statement.
    (7) The United States understands that nothing in the 
Convention limits the ability of a State to prohibit or 
restrict imports of goods into its territory in order to, inter 
alia, promote or require compliance with environmental and 
conservation laws, norms, and objectives.
    (8) The United States understands that articles 220, 228, 
and 230 apply only to pollution from vessels (as referred to in 
article 211) and not, for example, to pollution from dumping.
    (9) The United States understands, with respect to articles 
220 and 226, that the ``clear grounds'' requirement set forth 
in those articles is equivalent to the ``reasonable suspicion'' 
standard under United States law.
    (10) The United States understands, with respect to article 
228(2), that--
          (A) the ``proceedings'' referred to in that paragraph 
        are the same as those referred to in article 228(1), 
        namely those proceedings in respect of any violation of 
        applicable laws and regulations or international rules 
        and standards relating to the prevention, reduction and 
        control of pollution from vessels committed by a 
        foreign vessel beyond the territorial sea of the State 
        instituting proceedings; and
          (B) fraudulent concealment from an officer of the 
        United States of information concerning such pollution 
        would extend the three-year period in which such 
        proceedings may be instituted.
    (11) The United States understands, with respect to article 
230, that--
          (A) it applies only to natural persons aboard the 
        foreign vessels at the time of the act of pollution;
          (B) the references to ``monetary penalties only'' 
        exclude only imprisonment and corporal punishment;
          (C) the requirement that an act of pollution be 
        ``willful'' in order to impose non-monetary penalties 
        would not constrain the imposition of such penalties 
        for pollution caused by gross negligence;
          (D) in determining what constitutes a ``serious'' act 
        of pollution, a State may consider, as appropriate, the 
        cumulative or aggregate impact on the marine 
        environment of repeated acts of pollution over time; 
        and
          (E) among the factors relevant to the determination 
        whether an act of pollution is ``serious,'' a 
        significant factor is non-compliance with a generally 
        accepted international rule or standard.
    (12) The United States understands that sections 6 and 7 of 
Part XII do not limit the authority of a State to impose 
penalties, monetary or non-monetary, for, inter alia--
          (A) non-pollution offenses, such as false statements, 
        obstruction of justice, and obstruction of government 
        or judicial proceedings, wherever they occur; or
          (B) any violation of national laws and regulations or 
        applicable international rules and standards for the 
        prevention, reduction and control of pollution of the 
        marine environment that occurs while a foreign vessel 
        is in any of its ports, rivers, harbors, or offshore 
        terminals.
    (13) The United States understands that the Convention 
recognizes and does not constrain the longstanding sovereign 
right of a State to impose and enforce conditions for the entry 
of foreign vessels into its ports, rivers, harbors, or offshore 
terminals, such as a requirement that ships exchange ballast 
water beyond 200 nautical miles from shore or a requirement 
that tank vessels carrying oil be constructed with double 
hulls.
    (14) The United States understands, with respect to article 
21(2), that measures applying to the ``design, construction, 
equipment or manning'' do not include, inter alia, measures 
such as traffic separation schemes, ship routing measures, 
speed limits, quantitative restrictions on discharge of 
substances, restrictions on the discharge and/or uptake of 
ballast water, reporting requirements, and record-keeping 
requirements.
    (15) The United States understands that the Convention 
supports a coastal State's exercise of its domestic authority 
to regulate discharges into the marine environment resulting 
from industrial operations on board a foreign vessel.
    (16) The United States understands that the Convention 
supports a coastal State's exercise of its domestic authority 
to regulate the introduction into the marine environment of 
alien or new species.
    (17) The United States understands that, with respect to 
articles 61 and 62, a coastal State has the exclusive right to 
determine the allowable catch of the living resources in its 
exclusive economic zone, whether it has the capacity to harvest 
the entire allowable catch, whether any surplus exists for 
allocation to other States, and to establish the terms and 
conditions under which access may be granted. The United States 
further understands that such determinations are, by virtue of 
article 297(3)(a), not subject to binding dispute resolution 
under the Convention.
    (18) The United States understands that article 65 of the 
Convention lent direct support to the establishment of the 
moratorium on commercial whaling, supports the creation of 
sanctuaries and other conservation measures, and requires 
States to cooperate not only with respect to large whales, but 
with respect to all cetaceans.
    (19) The United States understands that, with respect to 
article 33, the term ``sanitary laws and regulations'' includes 
laws and regulations to protect human health from, inter alia, 
pathogens being introduced into the territorial sea.
    (20) The United States understands that decisions of the 
Council pursuant to procedures other than those set forth in 
article 161(8)(d) will involve administrative, institutional, 
or procedural matters and will not result in substantive 
obligations on the United States.
    (21) The United States understands that decisions of the 
Assembly under article 160(2)(e) to assess the contributions of 
members are to be taken pursuant to section 3(7) of the Annex 
to the Agreement and that the United States will, pursuant to 
section 9(3) of the Annex to the Agreement, be guaranteed a 
seat on the Finance Committee established by section 9(1) of 
the Annex to the Agreement, so long as the Authority supports 
itself through assessed contributions.
    (22) The United States declares, pursuant to article 39 of 
Annex VI, that decisions of the Seabed Disputes Chamber shall 
be enforceable in the territory of the United States only in 
accordance with procedures established by implementing 
legislation and that such decisions shall be subject to such 
legal and factual review as is constitutionally required and 
without precedential effect in any court of the United States.
    (23) The United States--
          (A) understands that article 161(8)(f) applies to the 
        Council's approval of amendments to section 4 of Annex 
        VI;
          (B) declares that, under that article, it intends to 
        accept only a procedure that requires consensus for the 
        adoption of amendments to section 4 of Annex VI; and
          (C) in the case of an amendment to section 4 of Annex 
        VI that is adopted contrary to this understanding, that 
        is, by a procedure other than consensus, will consider 
        itself bound by such an amendment only if it 
        subsequently ratifies such amendment pursuant to the 
        advice and consent of the Senate.
          (24) The United States declares that, with the 
        exception of articles 177-183, article 13 of Annex IV, 
        and article 10 of Annex VI, the provisions of the 
        Convention and the Agreement, including amendments 
        thereto and rules, regulations, and procedures 
        thereunder, are not self-executing.

SECTION 4. CONDITIONS.

    (a) In General.--The advice and consent of the Senate under 
section 1 is subject to the following conditions:
          (1) Not later than 15 days after the receipt by the 
        Secretary of State of a written communication from the 
        Secretary-General of the United Nations or the 
        Secretary-General of the Authority transmitting a 
        proposal to amend the Convention pursuant to article 
        312, 313, or 314, the President shall submit to the 
        Committee on Foreign Relations of the Senate a copy of 
        the proposed amendment.
          (2) Prior to the convening of a Conference to 
        consider amendments to the Convention proposed to be 
        adopted pursuant to article 312 of the Convention, the 
        President shall consult with the Committee on Foreign 
        Relations of the Senate on the amendments to be 
        considered at the Conference. The President shall also 
        consult with the Committee on Foreign Relations of the 
        Senate on any amendment proposed to be adopted pursuant 
        to article 313 of the Convention.
          (3) Not later than 15 days prior to any meeting--
                  (A) of the Council of the International 
                Seabed Authority to consider an amendment to 
                the Convention proposed to be adopted pursuant 
                to article 314 of the Convention; or
                  (B) of any other body under the Convention to 
                consider an amendment that would enter into 
                force pursuant to article 316(5) of the 
                Convention; the President shall consult with 
                the Committee on Foreign Relations of the 
                Senate on the amendment and on whether the 
                United States should object to its adoption.
                  (4) All amendments to the Convention, other 
                than amendments under article 316(5) of a 
                technical or administrative nature, shall be 
                submitted by the President to the Senate for 
                its advice and consent.
                  (5) The United States declares that it shall 
                take all necessary steps under the Convention 
                to ensure that amendments under article 316(5) 
                are adopted in conformity with the treaty 
                clause in Article II, section 2 of the United 
                States Constitution.
    (b) Inclusion of Certain Conditions in Instrument of 
Ratification.--Conditions 4 and 5 shall be included in the 
United States instrument of ratification to the Convention.

                           IX. MINORITY VIEWS

              Minority Views of Senators DeMint and Vitter

    Ronald Reagan Biographer Dinesh D'Souza tells of an 
incident that occurred only a few weeks after Reagan was 
elected president:

          According to aides who were present at the meeting, 
        Reagan was asked by Alexander Haig, his new Secretary 
        of State, to approve continuing negotiations for the 
        Law of the Sea treaty. Reagan said he would not support 
        the treaty and asked that negotiations be suspended.
          Incredulous, Haig tried to make him see the light by 
        pointing out that discussions had been ongoing for 
        years and that every recent president and virtually all 
        leading figures in both Parties accepted the general 
        framework of the treaty.
          ``Well, yes,'' Reagan said, ``but you see, Al, that's 
        what the last election was all about.''
          ``About the Law of the Sea treaty?'' Haig sneered.
          ``No,'' Reagan replied. ``It was about not doing 
        things just because that's the way they've been done 
        before.''

    Since that time, proponents have attempted to paint 
Reagan's objections as limited in scope, focused on a few minor 
changes to the seabed mining section. Meanwhile, key Reagan 
advisers like Ed Meese, Jeanne Kirkpatrick and James Malone 
have countered that his concerns were much more broad, relating 
to the fundamental collectivist philosophy embodied in the 
treaty. They suggested that even if the seabed mining regime 
was fixed or even deleted altogether, Reagan would still not 
have signed it. Who is correct?
    For a quarter century, this question has gone unanswered. 
However, we now have new insights, with the release of The 
Reagan Diaries. On page 90, we find the answer in President 
Reagan's own hand--

          Tuesday, June 29 [1982]. Decided in NSC meeting--will 
        not sign ``Law of the Sea'' Treaty even without seabed 
        mining provisions.

    Reagan's concerns with the treaty were summed up in a 1984 
article written by his chief Law of the Sea Negotiator, James 
Malone.

          The Law of the Sea Treaty's provisions establishing 
        the deep seabed mining regime were intentionally 
        designed to promote a new world order--a form of global 
        collectivism known as the new international economic 
        order (NIEO) that seeks ultimately the redistribution 
        of the world's wealth through a complex system of 
        manipulative central economic planning and bureaucratic 
        coercion.

    This applies not only to the seabed mining regime, but to 
all of the treaty with the exception of a few provisions 
dealing with navigation. In 1995, Commenting on the 1994 
Agreement, Ambassador Malone reiterated his earlier criticism:

          This remains the case today. All the provisions from 
        the past that make such a [new world order] outcome 
        possible, indeed likely, still stand. It is not true, 
        as argued by some, and frequently mentioned, that the 
        U.S. rejected the Convention in 1982 solely because of 
        technical difficulties with Part XI. The collectivist 
        and redistributionist provisions of the treaty were at 
        the core of the U.S. refusal to sign.

    We believe certain provisions of the United Nations 
Convention on the Law of the Sea, particularly those dealing 
with navigation, have merit. We further appreciate the Navy's 
interest in the treaty. However, the navigation provisions are 
primarily limited to the first 4 parts--11 pages out of a 188 
page treaty. The rest establishes a massive bureaucracy to 
govern the seas and anything that can be construed to impact 
the seas--even if the impact is de minimus.

    Taxes.--Article 13 imposes direct ``fees'' on United 
States' corporations engaged in seabed mining. Article 82 
requires ``payments'' of up to 7 percent for drilling on the 
outer continental shelf (OCS). The United States would be 
assessed for 7 percent of any oil, natural gas, or other 
resources derived by OCS exploration. The payments would be 
made directly to the Authority, which would redistribute the 
money to the other signatory nations. We believe it is unwise 
to create an international organization with taxing authority.

    Land-Based Sources of Pollution.--Articles 194, 207, and 
213 specifically apply the treaty's provisions to land-based 
sources of pollution. These provisions were tested in the ``MOX 
case.'' In the case, Ireland sued England over a land-based 
nuclear power plant, and the International Tribunal on the Law 
of the Sea asserted jurisdiction over the case. In his letter 
of submittal, found on the first page of the treaty document, 
President Clinton reinforces this point.

          As a far-reaching environmental accord addressing 
        vessel source pollution, pollution from seabed 
        activities, ocean dumping and land-based sources of 
        marine pollution, the Convention promotes continuing 
        improvement in the health of the world's oceans.

    There is almost no limit to what any smart international 
lawyer could do with these pollution provisions. Further, the 
United States has demonstrated historically that it takes its 
treaty obligations seriously. Other nations have not done the 
same. Why should we bind ourselves to a treaty that will 
handcuff our economy, while other nations will simply ignore 
the rules? The Senate has voted to reject the Kyoto Agreement 
for these same reasons; we should reject this backdoor Kyoto 
now.

    UN Secretary General Picks Arbitrators.--If ratified, the 
United States has stated it will select binding arbitration if 
disputes arise. Under Annex VIII, Article 3, in the likely 
event that Parties to a dispute cannot agree on arbitrators, 
they are selected by the Secretary General of the United 
Nations. This was confirmed by key witnesses in support of the 
treaty.
    It is puzzling why we would want to submit to a judicial 
authority selected by the United Nations, given the 
organization's corruption scandals, and the fact that of the 
152 countries Party to the treaty, the median voting 
coincidence with the United States in the 2006 General Assembly 
was less than 20 percent. This treaty subjects the United 
States to a governing body that is hostile to American 
interests.

    Nations Vote Against U.S. interests.--Like the United 
Nations, the US would be "assessed" for 22 percent of the 
operations, even though we only have one vote in the 152 nation 
assembly, and no veto. The American people have lost confidence 
in Congress. Handing over sovereignty to a new international 
body with the power to tax and regulate American citizens and 
businesses will not help restore that confidence.

    Military Activities.--The treaty reserves the sea for 
``peaceful purposes'' and creates a labyrinth of regulations 
and restrictions on acceptable activities. We are worried that 
the treaty could be used to inhibit legitimate military and 
intelligence activities. The Resolution of Ratification 
highlights the vagueness of Article 298(1)(b), suggesting that 
each State Party has the exclusive right to determine whether 
its activities are or were ``military activities'' and that 
such determinations are not subject to review. However, this is 
not stated in the treaty, and therefore it is our belief that 
the court or tribunal will likely make its own decision as to 
what constitutes a "military activity" notwithstanding the non-
binding understandings included in the Resolution.

    Intelligence Gathering Activities.--The Treaty fails to 
clearly include intelligence, surveillance, and reconnaissance 
activities under ``military activities.'' While administrations 
have stated that these terms are covered, the United States 
Senate and House of Representatives consider these separate 
functions and have different committees that oversee the 
intelligence community and the armed services. When there is a 
disagreement on terms, this disagreement is settled by the 
courts.
    In addition, under Article 19 foreign ships may be denied 
passage through a coastal state's Territorial Sea if it engages 
in a number of activities, including any act aimed at 
collecting information to the prejudice or security of the 
coastal state; the carrying out of research or survey 
activities; any other activity not having a direct bearing on 
passage. These are activities that would be necessary for the 
United States to collect intelligence information that could be 
crucial to our self-defense.
    Article 20 further limits the ability of the United States 
to collect intelligence: in the Territorial Sea, submarines and 
other underwater vehicles are required to navigate on the 
surface and must show their flag. Under the treaty, the United 
States would have to surface the submarine, and fly a 
conspicuous American flag, so that everyone would know that an 
American submarine was in the vicinity. The Treaty fails to 
protect the significant role submarines have played, especially 
during the Cold War, in gathering intelligence very close to 
foreign shorelines.


                                 ANNEX

                              ----------                              










                  Letters From Other Senate Committees